tamil nadu state jud icial academy · munsilal vs. smt. santosh and others cdj 2017 sc 235...

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TAMIL NADU STATE JUD

Vol: XII Part: 2

OFFICE: No.30/95, P.S.K.R. Salai, R.A. Puram

Phone Nos

E-Mail:

TAMIL NADU STATE JUDICIAL ACADEMY

I Part: 2

: No.30/95, P.S.K.R. Salai, R.A. Puram, Chennai – 600 028

Phone Nos. 044– 24958595 / 96 / 97 / 98

Telefax: (044) 24958595

Website: www.tnsja.tn.nic.in

Mail: [email protected]/[email protected]

ICIAL ACADEMY

I Part: 2 February, 2017

600 028

I

IINNDDEEXX

SS..NNoo.. IIMMPPOORRTTAANNTT CCAASSEE LLAAWW PPAAGGEE

NNoo..

1 Supreme Court - Civil Cases 01

2 Supreme Court - Criminal Cases 03

3 High Court - Civil Cases 07

4 High Court - Criminal Cases 11

II

TTAABBLLEE OOFF CCAASSEESS WWIITTHH CCIITTAATTIIOONN

SUPREME COURT - CIVIL CASES

S.

No. CAUSE TITLE CITATION

DATE OF

JUDGMENT SHORT NOTES

Pg.

No.

1

M/s. Purohit and company

vs. Khatoonbee and

another.

CDJ 2017 SC

247 09.02.2017

Claim for compensation before

MACT must be raised within a

reasonable time, It is not as if, it can

be open to approach a MACT at any

point of time.

01

2 Munsilal vs. Smt. Santosh

and Others

CDJ 2017 SC

235 01.02.2017

Occupancy of rented premises by

tenant's son-in-law amounts to

subletting. The relationship is not like

that of a spouse being allowed to carry

out a business in the same house.

01

3

Executive Officer,

Arulmigu Chokkanatha

Swamy Koil Trust

Virudhunagar vs.

Chandran and others

CDJ 2017 SC

135 10.02.2017

Suit for declaration without relief of

recovery of possession is clearly not

maintainable

01

4 Prabhakara Adiga vs.

Gowri and Others

CDJ 2017 SC

175 20.02.2017

Execution petition against legal heirs

of JD on a permanent injunction

decree – maintainable

02

5 Bhupinder Singh Bawa vs.

Asha Devi

(2016) 8 MLJ

194 (SC) 08.11.2016

Tenancy Laws – Eviction Order –

Bona fide requirement 02

III

SUPREME COURT - CRIMINAL CASES

S.


DATE OF


Pg.

No.

1

State of Karnataka

and another vs.

Selvi J. Jayalalitha

and others

CDJ 2017 SC

143 14.02.2017

The corruption is a vice of insatiable avarice for

self-aggrandizement by the unscrupulous, taking

unfair advantage of their power and authority and

those in public office also, in breach of the

institutional norms, mostly backed by minatory

loyalists. Both the corrupt and the corrupter are

indictable and answerable to the society and the

country as a whole.

03

2

Suresh Singhal vs.

State (Delhi

Administration)

CDJ 2017 SC

105 02.02.2017

Deceased and his brothers strangulating appellant –

Appellant had the right to self defence – Appellant

exercising right of self defence in good faith in his

own defence and without premeditation. When

there is a reasonable apprehension of receiving

injury U/S 97 IPC – Right of Pvt. defence

available.

04

3

Amrutbhai

Shambhubhai Patel

vs. Sumanbhai

Kantibhai Patel

and others

CDJ 2017 SC

108 02.02.2017

After taking cognizance of accused letting in of

evidence and recording Statement u/s 313.

Magistrate would be bereft of any competence to

direct. Further investigation either suo motu or on

request of the complainant.

05

4

State of Rajasthan

vs. Fatehkaran

Mehdu

CDJ 2017 SC

1131 03.02.2017

Section 397 – Revision – Stage of framing of

charge – Court not concerned with proof of

allegation – To contend that at the stage of framing

the charge itself the court should form an opinion

that the accused is certainly guilty of committing an

offence, not permissible. Discharge- Framing of

charge is not a stage at which the final test of

possibility of being guilt is to be applied.

05

5

Amarsang Nathaji

vs. Hardie

Harshadbhai Patel

2016 4

Crimes(SC)

190

23.11.2016

Code of Criminal Procedure, 1973 – Section 340(1)

r/w sections 199 and 200, Indian Penal Code, 1860

– Initiating an inquiry into any offence punishable

u/s 199 and 200 – Mere making a contradictory

statement in a judicial proceeding by itself not

always sufficient to justify a prosecution u/s 199

and 200 Section 340 Cr.P.C. Proceedings- Making

contradictory statements at trial is not offence by

itself. It must be shown that false statement was

intentionally given for the purpose of using the

same at any stage. Code of Criminal Procedure,

1973 – Section 340(1) – Complaint filed u/s 340

has to be dealt with as if on a police report –

Procedure for trial of warrant case to be followed –

Sections 195(1)(b)(i) and 238 to 243 – Code

therefore providing meticulous procedures u/s 340

– High Court not following all requirements u/s

340 – Parties deciding to settle the matter amicably

– Invoking section 340 not sustainable.

05

IV

HIGH COURT - CIVIL CASES

S.


DATE OF


Pg.

No.

1

M/s.Ganapathy Sugar

Industries Ltd., vs.

M/s.Kwi Konveyors

2017 (1) TLNJ

357 (Civil) 17.11.2016

Petition to set aside the ex-parte decree- affidavit filed

by the advocate – held advocate is not a litigant and

therefore not competent to file a affidavit.

07

2

The Executive

Engineer and Admin.

Officer, Erode

Housing unit vs.

K.P.Natarajan

2016 (3)

MWN(Civil)

389

20.10.2016

When compensation is not paid within one year of date

of possession, interest at rate of 15% is to be paid from

the date of expiry of the said period of one year on

amount of compensation or part, which has not been

paid or deposited before date of such expiry and no

interest would be payable on solatium during preceding

period.

07

3 Selvam.P. vs.

Dinakaran. K.

2017 (1) TLNJ

236 (Civil) 22.12.2016

Suit for recovery of money – execution of promissory

note not proved – presumption u/s.118 of the

Negotiable instrument Act is not applicable.

08

4

Ram Balaji. A.V. and

another vs. Hotel

Silver Stars Pvt. Ltd.,

Chennai-7.

2017 (1) TLNJ

193 (Civil) 10.01.2017

Suit for specific performance on agreement of sale

based on oral agreement – filed within limitation-no

consensus-ad-idem established- – relief cannot be

granted.

08

5

Sarjan Realities

Private Limited and

Others vs. Aathilinga

perumal

CDJ 2017

MHC 1029 16.02.2017

Confronting of a signature alone to a witness without

disclosing the document, the admission as to the

signature cannot be taken as an admission of execution

of the document. When the defendant admits his

signature in the document but claims the document to

be a forged one- it is for him to prove the same.

08

6

Singapore Reality Pvt.

Limited. Rep. by its

Director Yeo Boon

Kwang vs. Inspector

of Police,

Kanchipuram and

Others

CDJ 2017

MHC 1030 10.02.2017

As per the Guideline 11 issued by the committee

constituted by the Government in G.O.(3D) No.42,

Home dated 30.6.2008, when police protection is

sought for the implementation of a civil court order, it

should be given readily.

09

7

K.N. Palaniappan,

Sole Proprietor of M/s.

Alenke PL Industries

vs. V. Saraswathi @

Sunitha

CDJ 2017

MHC 1031 01.02.2017

Eviction on the ground of own use and occupation of

the land lady for Textile business – during the course of

the cross-examination, the tenant himself had extracted

statement from the landlady that she was carrying on

cloth business in her house – Hence, the contention of

the tenant that without pleading, no evidence can be

looked into is rejected, as the said evidence has been

elicited only during the cross-examination.

09

8

K.M.Balasubramanian

vs. C. Loganathan and

Another

CDJ 2017

MHC 1033 10.02.2017

Application u/s 47 CPC - once JD Sells Property he

cannot file Sec 47 application - material irregularity

and fraud only vitiate sale

09

9

A. Kuberan vs. The

Commissioner,

Villupuram

Municipality,

Villupuram

CDJ 2017

MHC 495 10.02.2017

Property Tax arrears – cannot be recovered when it has

become time barred by operation of law. 10

10

Shamshed Begum vs.

Sadiq Basha and

others

CDJ 2017

MHC 018 22.12.2016

Mohammedan law - when mother is the only person

who could look after the interest of minor, then gift can

be accepted by the child’s mother, for the minor child

under Mohammedan law.

10

V

HIGH COURT - CRIMINAL CASES

S.


DATE OF


Pg.

No.

1

Sampath Kumar and other

vs. State by Periyanaicken

palayam P.S.

CDJ 2017

MHC 154 19.01.2017

Electronic evidence which is not in confirmity

with Sec 65(B) of Indian Evidence Act - cannot be

accepted – F.I.R. should be strictly the replica of

complaint and there should not be any variance -

Unexplained interpolations and corrections in

F.I.R. would lead to inference that it has been

done as an afterthought - Inordinate delay and

unexplained delay in F.I.R. reaching the

Magistrate is fatal – Charge framed under Section

148 I.P.C. against A.1 and A.2. Hence, A.1 and

A.2 can be convicted under Section 149 of I.P.C,

even when no charge has been framed under

Section 149 of I.P.C. – Importance of Section 226

of Cr.P.C. – Emphasized – Recording of

evidence- Judge should not be a silent spectator.

11

2 Raj vs. Leoni 2017 (1) TLNJ

187 (Crl) 24.01.2017

The respondent after adducing evidence in support

of his case later cannot plead that he had no

knowledge about the ex-parte order. His conduct

of remaining silent without enquiring about the

status of the case is not acceptable

11

3

Adbur Rahman vs.

Secretary to Govt. Home

Dept. Govt. of T.N. and 4

others.

2017 (1) TLNJ

113 (Crl) 19.01.2017

Petition to stop functioning of a Masjid Shariat

Council – The Court refused to agree with the

submission of fourth respondent as if it is an

innocuous exercise of mere conciliation which is

taking place and prevented the functioning of the

Masjid Shariat Council.

11

4 Arunbabu.K vs.

Senthilkumar & 3 Ors.

2017 (1) TLNJ

154 (Crl) 05.01.2017

While civil suit pending before Civil Court,

petitioner could only approach the same and he

cannot try to convert the same into a criminal case

– Also held that petitioner only a third party, who

has entered into an agreement, in regard to the

property

12

5

Madhu @ Madhaiyan vs.

State by Inspector of

Police, Chithodu, Erode

District

2017 (1) TLNJ

160 (Crl) 04.01.2017

The statement under 164 Cr.P.C cannot be a

substantive evidence, as the same, being a former

statement, could be used either for corroboration

or to contradict the marker of the respective

statement – conviction solely based on the same is

not proper.

12

6

Purushothaman

S/o.Arumugam vs. State

by Inspector of Police,

All women Station,

Guindy, Chennai.

2017 (1)

TLNJ 138

(Crl)

04.01.2017

Petition seeking medical examination of victim

girl to determine her age dismissed by trial Court

– Challenge – held – Ossification test cannot be

taken to be determinative on the age of the person

examined – It boils down to being a mere

statement of the opinion of the doctor who

conducts the examination – when once the

purpose for which the petition stands filed will not

be definitely served by passing favourable order

therein – no reason to interfere with the order

under challenge

12

VI

S.


DATE OF


Pg.

No.

7 Thilagavathy.P. vs.

Somasundaram.B

2017 (1) TLNJ

12 (Crl) 30.11.2016

Complainant when she happens to be a house wife

had not established that she had the requisite

wherewithal or means to advance such a heavy

sum of Rs.5,00,000/- to the accused – Also not

shown the said loan amount in her Income Tax

returns and therefore, the Hon'ble High Court

acquitted the accused.

13

8

Venkatesan and Others vs.

State represented by

Inspector of Police, Crime

Branch, Cuddalore

CDJ 2017

MHC 969 03.02.2017

The Court should begin with the presumption that

the approver is unworthy of credit and if the Court

decides to act upon the said evidence of the

approver, it should look for corroboration, in

material particulars. In other words, independent

of the accomplice evidence, there should be some

evidence against the accused to connect them with

the crime. If the presumption is otherwise rebutted

by evidence, either direct or circumstantial, then,

the said presumption vanishes away and therefore,

in such an event, even in the absence of any

corroboration from any material particulars, the

evidence of accomplice, can by itself be the

foundation for conviction.

13

9

M. Kannan vs. State rep by

The Inspector of Police, All

Women Police Station,

Bhavani, Erode District

CDJ 2017

MHC 898 17.02.2017

The court shall carefully strike a balance between

the fair trial to the accused as well as the victim.

The right of the accused to cross-examine the

victim and the right of the victim to privacy

should be measured meticulously and without

causing any harm to any of these rights, the court

should draw the line.

13

10

Chinnathambi @

Subramani vs. State by

Inspector of Police,

Vellakovil Police Station

CDJ 2017

MHC 1028 23.02.2017

The courts of law cannot allow themselves to be

swayed by totally irrelevant substances which are

brought to the notice of the court not by way of

evidence, but by way of wholly unrelated

materials. The courts of law cannot assume the

role of a monarch or dictator so as to impose any

punishment on anyone at their whims and fancies

even in the absence of any legal evidence.

14

1

CDJ 2017 SC 247

M/s. Purohit and company vs. Khatoonbee and another

Date of Judgment: 09.02.2017

Motor Vehicles Act, 1988, section 166(3) – Limitation Act, 1963 Section 5 Limitation to

raise claim under Motor Vehicles -Motor accident – No limitation prescribed for raising claim

but claim could be raised within reasonable time – claim could not be filed after 28 years of

incident – it is dead claim cannot be considered as a prima facie reasonable period and delay

cannot be justified on the ground that claimants are poor person and they have no knowledge

about the law.

CDJ 2017 SC 235

Munsilal vs. Smt. Santosh and Others


Rent control proceedings- eviction on the ground of sub letting- claim that business is run

by son-in-law who is also a partner- held:-

The parties had not acted on the partnership which was shown, and that there was a

parting of possession of the premises in which the son-in-law was allowed to occupy the

premises and carry out business exclusively. There is no evidence on record that the account

books were maintained and the profits were shared between the parties as partners. The son-in-

law had accepted that he was carrying out a business of sale of merchandise from the shop.

CDJ 2017 SC 135

Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar

vs.

Chandran and others


Specific Reliefs Act, 1963 – Sections 34 and 42 – Suit for declaration and mandatory

injunction – Plaintiff, who was not in possession, had claimed only declaratory relief along with

mandatory injunction – Plaintiff being out of possession, relief of recovery of possession was a

further relief which ought to have been claimed by plaintiff – Suit filed by plaintiff for a mere

declaration without relief of recovery of possession was clearly not maintainable being hit by

Section 42 and trial court rightly dismissed suit – High Court in exercise of its jurisdiction under

Section 100 C.P.C. could not have reversed decree of courts below without holding that

reasoning given by courts below was legally unsustainable – High Court committed error in

decreeing suit – Decree of the High Court is also contradictory – High Court has affirmed

SUPREME COURT CITATIONS

CIVIL CASES

2

findings that Defendant No. 1 is owner of property whereas, by decreeing suit for declaration and

mandatory injunction name of Defendant No. 1 is to be removed and replaced by plaintiff which

is clearly erroneous and unsustainable – Judgment of High Court set aside and those of trial court

and First Appellate Court restored.

CDJ 2017 SC 175

Prabhakara Adiga vs. Gowri and others


(A) Civil Procedure Code, 1908 – Sections 47 and 50 read with Order 21 Rules 16 and 32

– Execution of decree – Section 50 is not confined to a particular kind of decree – Decree for

permanent injunction can be executed against judgment debtor or his legal representatives – It

would be open to decree holder to execute decree against successor of interest of judgment-

debtor also – Death of person liable to render account for property received by him does not

affect liability of his estate – Right which had been adjudicated in suit in present matter and

findings which have been recorded as basis for grant of injunction as to disputed property which

is heritable and partible would enure not only to benefit of legal heir of decree-holders but also

would bind legal representatives of judgment-debtor.

(B) Maxim – actio personalis moritur cum persona – Execution of decree – Maxim is

limited to certain class of cases – When right litigated upon is heritable, decree would not

normally abate and can be enforced by LRs. of decree-holder and against judgment-debtor or his

legal representatives – It would be against public policy to ask decree-holder to litigate once over

again against legal representatives of judgment-debtor when cause and injunction survives.

(2016) 8 MLJ 194 (SC)

Bhupinder Singh Bawa vs. Asha Devi


Tenancy laws – Eviction Order – Bonafide Requirement – Delhi Rent Control Act, 1958

(Act, 1958), Section 14(1)(e) – Eviction order passed by Additional Rent Controller on ground of

bona fide requirement of tenanted premises for business requirement of son of

landlady/Respondent herein – Appellant-tenant was directed to vacate suit scheduled premises in

accordance with law – Revision petition filed by Appellant before High Court against eviction

order was dismissed – Appeal against order of High Court – Whether there existed bona fide

requirement of Respondent for her son’s business and alternate suitable accommodation

available – Held, courts recorded concurrent finding of fact that ground floor of property does

not belong to husband of Respondent and question of its suitability as alternate accommodation

does not arise – Additional Rent Controller and High Court rightly concluded that no alternative

premise was lying vacant for running business of Respondent’s son – It was perfectly open to

landlord to choose more suitable premises for carrying on business by her son – Respondent

cannot be dictated by Appellant as to from which shop her son should start business –

Concurrent findings recorded by courts below based on evidence and materials on record – No

infirmity found warranting interference with impugned judgment – Appeal dismissed.

*******

3

CDJ 2017 SC 143

State of Karnataka and another vs. Selvi J. Jayalalitha and others


Constitution of India - Article 32 - Indian Penal Code - Section 21, Section 109, Section

120B, Sections 161 to 165A, Section 409, Section 420, Section 467, Section 471 - Income tax

Act,1922 - Section 10,Section 10(1), Section 13 - Income Tax Act, 1961 - Section 68, Section

69, Section 69A, Section 269-SS, Section 271(1)(c) - Direct Tax Laws (Amendment) Act of

1987 - Section 269DD, Section 276DD - Prevention of Corruption Act, 1947 - Section 5, Section

5(1), Sections 5(1)(a), Section 5(1)(d) , Section 5(1)(e), Section 5(2), Section 5(3) - Transfer of

Property Act - Section 107 - Evidence Act 1892 - Section 3, Section 43, Section 45 - Prevention

of Corruption Act 1988 - Section 11, Section 13(1) (c), Section 13(1)(e), Section 13(2), Section

17 - Companies Act - Section 209, Section 210, Section 211, Section 213, Section 215, Section

220, Section 234 - Code of Criminal Procedure, 1973 - Section 4(2), Section 173(8), Section

202,Section 313, Section 378, Section 452 - Government of India Act, 1935 - Section 72 - DSPE

Act, 1946 – Section 6A - CBC Act - Section 26 (c) - Anti Corruption Laws (Amendment) Act,

1964 - Forward Contracts Regulation Act, 1852 - Foreign Exchange Bonds (Immunities and

Exemptions) Act, 1991- Narcotic Drugs and Psychotropic Substances 1985 - The Terrorists and

Disruptive Activities, (Prevention) Act, 1987- Sales Tax Act, 1988 - Criminal Law Amendment

Ordinance, 1944 - Code of Civil Procedure, 1908 - Criminal Amendment Ordinance, 1944 -

Conviction - Evidence - Arithmetical calculations – Incorrect - Appellants challenged judgment

and order rendered by High Court in appeals preferred by respondents, thereby acquitting them

of charge under Sections 120B and 109 of IPC read with Sections 13(1)(e) and 13(2) of 1988 Act

as framed against them and also resultantly setting-aside order of Trial Court for confiscation of

properties, both movable and immovable, of concerned firms, as mentioned therein - Trial Court

thus held that Respondents had failed to prove their defence, when tested on evidence adduced

even by standard of preponderance of probability and convicted first Accused for offences under

Section 13(1)(e) r/w Section 13(2) of PC Act and Further first to fourth Accused were convicted

under Section 120-B IPC r/w Section 13(1)(e) r/w Section 13(2) of PC Act as well Second to

fourth Accused were additionally convicted under Sections 109 IPC r/w 13(1)(e) r/w 13(2) of PC

Act and sentenced them accordingly as here to before mentioned - hence this appeal – Court held

- percentage of disproportionate assets as 8.12% as computed by High Court was based on

completely wrong reading of evidence on record compounded by incorrect arithmetical

calculations - In view of regnant evidence on record, unassailably proving disproportionateness

of assets, as contemplated in Section 13(1)(e) of 1988 Act, it is inessential as well to resort to any

arithmetic to compute percentage thereof - Both Courts have construed all assets, income and

expenditure of all accused collectively - Court see no convincing reason to adopt different course

which even otherwise, having regard to charge, was not warranted - Noticeably, respondents

accused accepted all findings of High Court - Court have analyzed evidence adduced by parties

and Court come to conclusion that first to fourth Accused have entered into conspiracy and in

furtherance of same, first Accused who was a public servant at relevant time had come into

SUPREME COURT CITATIONS

CRIMINAL CASES

4

possession of assets disproportionate to known sources of her income during check period and

had got same dispersed in names of Second to fourth Accused and firms & companies involved

to hold these on her behalf with a masked front - Furthermore, charge of abetment laid against

Second to fourth Accused in commission of offence by first Accused also stands proved - As

sole public servant has died being first Accused in this matter, in Court opinion, though appeals

against her have abated, even then Second to fourth Accused are liable to be convicted and

sentenced in manner as has been held by Trial Judge - Trial Court correctly held in this matter

that private individuals can be prosecuted by Court on ground that they have abetted act of

criminal misconduct falling under Section 13(1)(e) of 1988 Act committed by public servant -

Trial Court correctly came to conclusion on such reasoning and Court hereby uphold same -

Court set aside judgment and order of High Court and affirm and restore judgment of Trial

Court in to against Second to fourth Accused - However, though in process of scrutiny of facts

and law involved and inextricable nexus of first Accused with Second to fourth Accused ,

reference to her role as well as evidence pertaining to her had been made, she having expired

meanwhile, appeals, so far as those relate to her stand abated -Nevertheless, to reiterate, having

regard to fact that charge framed against Second to fourth Accused was proved, conviction and

sentence recorded against them by Trial Court was restored in full including consequential

directions - Second to fourth Accused/Respondents, in view of this determination and restoration

of their conviction and sentence, would surrender before Trial Court forthwith - Trial Court was

hereby also ordered to take immediate steps to ensure that second to fourth Respondents serve

out remainder of sentence awarded them and take further steps in compliance of this judgment,

in accordance with law – appeals are allowed.

CDJ 2017 SC 105

Suresh Singhal vs. State (Delhi Administration)


(a) Criminal trial – Appreciation of evidence – Appellant alleged to have fired from his

licensed revolver – Bullets recovered from the bodies not matching with revolver of appellant –

Ballistic report not determinative as to which weapon the appellant used – Benefit of doubt –

Must go appellant – Conviction modified from that u/s 302 to one u/s 304.

(b) Indian Penal Code, 1860 – Section 97 – Deceased and his brothers strangulating

appellant – Appellant had the right to self defence – Appellant exercising right of self defence in

good faith in his own defence and without premeditation – However, he exceeded the right. (Para

23, 25) (2010) 2 SCC 333 – Relied upon

(c) Indian Penal Code, 1860 – Section 304 – Appellant firing at deceased with the

intention of causing death or of causing such bodily injury as is likely to cause death – Held,

guilty of offence u/s 304 – Sentenced to the period undergone.

Cases referred

5

CDJ 2017 SC 108

Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and others


Code of Criminal Procedure, 1973 – Section 173(8) – Investigating agency invested with

power to seek and obtain approval of the court and thereafter conduct further investigation at any

stage – Magistrate cannot order further investigation suo motu or on an application by informant

after cognizance has been taken on the basis of the earlier report, process has been issued and

accused has entered appearance in response thereto – Sections 156, 190, 200, 202 and 204

distinguished.

Cases referred

CDJ 2017 SC 113

State of Rajasthan vs. Fatehkaran Mehdu


(a) Prevention of Corruption Act, 1988 – Section 13(1) (d) & 13(2) – Shri Mehdu

although granted quarry licence only for three bigha gap land in Plot No. 1345/1185/124, but

technical map issued by Shri Mehdu was to an area of 80,000 Sq. ft, which was a source for

Kishan Singh Rawat to carry on unauthorised mining over the larger area than that of actually

allotted to him – Offence under Section 13(1)(d) and 13(2) and Section 120B IPC made out –

Interference by High Court not sustainable.

(b) Code of Criminal Procedure, 1973 – Section 397 – Revision – Stage of framing of

charge – Court not concerned with proof of allegation – To contend that at the stage of framing

the charge itself the court should form an opinion that the accused is certainly guilty of

committing an offence, not permissible.

(c) Code of Criminal Procedure, 1973 – Section 397 – Revision – Scope – Provision

aiming to set right a patent defect or an error of jurisdiction or law or the perversity which has

crept in the proceeding – Quashing of charge

s referred

2016 4 Crimes (SC) 190

Amarsang Nathaji vs. Hardie Harshadbhai Patel


(a) Code of Criminal Procedure, 1973 – Section 340(1) r/w sections 199 and 200, Indian

Penal Code, 1860 – Initiating an inquiry into any offence punishable u/s 199 and 200 – Mere

making a contradictory statement in a judicial proceeding by itself not always sufficient to justify

a prosecution u/s 199 and 200 – Intentionally giving a false statement at any stage of the judicial

proceedings or fabricated false evidence for the purpose of using the same at any stage of the

judicial proceedings attracts section 199 and 200 – Even then, the court has to form an opinion

that it is expedient in the interests of justice to initiate an inquiry – Court having a prima facie

satisfaction of the offence which appears to have been committed should suffice – Even after

6

forming the opinion court has to decide if compliant is required to be filed – Then only the court

may file a complaint.

(b) Code of Criminal Procedure, 1973 – Section 340(1) – Complaint filed u/s 340 has to

be dealt with as if on a police report – Procedure for trial of warrant case to be followed –

Sections 195(1)(b)(i) and 238 to 243 – Code therefore providing meticulous procedures u/s 340 –

High Court not following all requirements u/s 340 – Parties deciding to settle the matter

amicably – Invoking section 340 not sustainable.

*******

7

2017 (1) TLNJ 357 (Civil)

M/s.Ganapathy Sugar Industries Ltd., vs. M/s. Kwi Konveyors


Civil Procedure Code 1908 as amended, Order 9 Rule 13 – Petition to set aside the ex-

parte decree – affidavit filed by Advocate stating she was held up in another court and the

Defendant was set exparte before she could reach the concerned court – Held, Advocate is not a

litigant and therefore not competent to file affidavit – Advocate can file only an affidavit

supporting the affidavit of the litigant explaining the reasons – However, since the courts have

not directed the party to file separate affidavit, as an exceptional case, the affidavit of Advocate

was accepted.

Civil Procedure Code 1908 as amended, Order 9 Rule 13 – Suit for recovery of money –

application dismissed by Trial Court – CMA filed by the Defendant allowed by the First

Appellate Court with condition to deposit the entire suit claim – Revision Petition filed by

Defendant – Held, condition to deposit the entire claim amount is onerous and the same was

modified to Rs.5,000/- as costs – Civil Revision Petition allowed in part.

2016 (3) MWN (Civil) 389

The Executive Engineer and Admin. Officer, Erode Housing unit

vs.

K.P. Natarajan


LAND ACQUISTION ACT, 1894 (1 OF 1894), Section 34, Compensation – Interest

thereupon – Payment of – When Compensation is not paid within one year of date of possession,

Interest at a rate of 15% is to paid from date of expiry of said period of one year on amount of

compensation or part, which has not been paid or deposited before date of such expiry and no

Interest would be payable on Solatium during preceding period – Intention of legislature to

ensure that aggregate amounts reaches person as soon as he is deprived of possession of his land

– As delay in payment of Compensation would be detrimental to owner of land , Interest is

awarded for period of delay – No Interest is payable, if compensation has been duly paid –

Decision of Apex Court in amounts reaches person as soon as he is deprived of possession of his

land – As delay in payment of Compensation would be detrimental to owner of land , Interest is

awarded for period of delay – No Interest is payable, if compensation has been duly paid –

Decision of Apex Court in Sunder Vs. Union of India, 2001(4) CTC 434 (SC), that Interest on

Solatium can be claimed only in pending executions and not in closed executions – In cases,

where issue of Interest has not been determined by Reference/Appellate Court, payment of

Interest to be as per ratio laid down in Sunder case – Matters, where reference court has awarded

Interest on compensation amount, decision of Reference Court would be binding and not ratio in

decision of Sunder case – Consequently, decision of Execution Court that amount deposited by

HIGH COURT CITATIONS

CIVIL CASES

8

the Judgment- debtor to be first apportioned towards interest and thereafter towards

compensation, not inferred with.

2017 (1) TLNJ 236 (Civil)

Selvam. P. vs. Dinakaran. K.


Section 118 – Suit for recovery of money on the basis of promissory note – suit and first

appeal dismissed – Second Appeal by plaintiff – Held, defendant denying execution of suit

promissory note – there is no contract or agreement between the parties – basis of suit

promissory note not established by the Plaintiff – since the execution of promissory note is not

proved, presumption under Section 118 of Negotiable Instruments Act was held to be not

applicable – Second Appeal dismissed.

2017 (1) TLNJ 193 (Civil)

Ram Balaji. A.V. Proprietor Akshitha Property Developers and another

vs.

Hotel Silver Stars Pvt. Ltd., Chennai-7


Specific Relief Act 1963 - Suit for specific performance on Agreement on Sale based on

Oral Agreement – No consensus ad idem – Oral Agreement to be proved in accordance with law

– The Agreement was revoked without challenging the cancellation of Agreement by way of

declaration – Suit on Specific performance of Agreement cannot lie – relied on T.S.Sikandar (D)

by LRs. Vs. K., Subramani & others) 2014 (1) LW 47 – relied on V. Sataswathi Vs. Daweed

Beevi, 2015 (4) TNLJ 221 (Civil) – Though suit was filed within limitation, the equitable

remedy of Specific Performance need not be granted on account of delay – There was no

Consensus ad idem and inaction of the Plaintiff and no proof of readiness and willingness – suit

dismissed.

CDJ 2017 MHC 1029

Sarjan Realities Private Limited and Others vs. Aathilinga perumal


Suit for specific performance of contract and permanent injunction - The defendants

evaded to perform their part of contract of sale and subsequently contended that sale agreement

produced by the plaintiff is a forged and fabricated document and the third defendant has not

signed in any agreement with the plaintiff – The third defendant examined as D.W.3 and the

Director of the company examined as D.W.2 have categorically deposed that third defendant was

the power of attorney and authorised signatory to the first defendant company and the power of

attorney deed has not been revoked - Bearing in mind, the personal characteristics of the

writings, similarities, dissimilarities, the Hon’ble Court compared the signatures found in the

said documents and is satisfied that the signatures found in the agreement and Receipt (Exs.A2

and A3) are that of the third defendant - The evidence of third defendant as D.W.1 also lends

support to the above opinion of this Court and corroborates

9

Court Held: Having admitted the signature in the sale agreement even during cross-

examination, the defendants have not taken steps to send the document to the handwriting expert

for examination – Appeal Suit is dismissed against the decree of the trial Court as prayed for.

CDJ 2017 MHC 1030

Singapore Reality Pvt. Limited. Rep. by its Director Yeo Boon Kwang

vs.

Inspector of Police, Kanchipuram and Others


The petitioner filed a suit in O.S.No.93 of 2016 on the file of the Principal District Court,

Chengalpet and obtained an order of interim injunction on 01.06.2016 - Even thereafter, the third

respondent tried to dispossess the petitioner, which compelled the petitioner to approach this

Court by filing Crl.OP No.18814 of 2016 seeking a direction to the respondents to provide police

protection to the petitioner's property .

Court Held - as per the Guideline 11 issued by the committee constituted by the

Government in G.O.(3D) No.42, Home dated 30.6.2008, when police protection is sought for,

for the implementation of a civil court order, it should be given readily.

CDJ 2017 MHC 1031

K.N. Palaniappan, sole proprietor of M/s. Alenke PL Industries

vs.

V. Saraswathi @ Sunitha


Landlady seeks for eviction of the tenant on the ground of personal occupation - Both the

Courts below had held that the personal requirement of the demised premises is bona fide and

hence, ordered for eviction of the tenant - the contention was raised by the learned counsel for

the petitioner before the Hon’ble High Court that without pleading, no evidence can be looked

into.

Held: In the instant case, the evidence has been elicited only during the cross-

examination of P.W.1. In such circumstances, the evidence can be looked into and thus, the

evidence of P.W.1 has clearly proved that on the said date, she is doing business.

CDJ 2017 MHC 1033

K.M. Balasubramanian vs. C. Loganathan and another


Suit for recovery of money due on a promissory note – Whether the application preferred

under Section 47 C.P.C. is maintainable - Held: If the sale is sought to be set aside on the ground

of material irregularity in publishing and conducting the sale within the meaning of Order 21

Rule 90, then Section 47 cannot come into play at all, and the sale could be set aside only by

invoking Order 21 Rule 90. So, the revision petitioner/judgment debtor ought to have filed an

10

application within a period of 60 days from the date of sale, as per Article 127. But the sale was

conducted on 27.09.2007 and the present application came to be filed only on 18.04.2009. Only

in order to circumvent the period of limitation, the revision petitioner/judgment debtor has filed

the application under Section 47 CPC. Therefore, the petition filed under Section 47 C.P.C. is not

maintainable.

CDJ 2017 MHC 495

A. Kuberan Vs. The Commissioner, Villupuram Municipality, Villupuram


Constitution of India - Article 226 - Tamil Nadu District Municipalities Act - Section 345

- Madurai City Municipal Corporation Act - Section 483 - Tamil Nadu Municipal Laws (Third

Amendment) Act 2008 - Property tax - Petitioner sought to forbear Respondent from demanding,

collecting or seeking to enforce demand for property tax which has become time-barred by

operation of law - held - Government had made recommendation to Legislature to extend period

in Section 345 from 3 years to 6 years - But, same was not accepted by Legislature then, as could

be seen from 2008 Act, which came into effect from government order - Third Amendment Act

did not amend Section 345 - Only subsequently, in year 2008, Section 345 was amended and

period of 3 years was extended to 12 years - claim of Respondent municipality of property tax

prior to 2000-2001 was hereby set aside - writ petition allowed.

CDJ 2017 MHC 018

Shamshed Begum vs. Sadiq Basha


Code of Civil Procedure, 1908 – Section 96 – Dismissal of partition suit – Validity of –

Trial Court dismissed suit filed by Plaintiff for partition and separate possession and also for

permanent injunction against first to fourth Defendant restraining them from in any way

alienating suit properties – Court Held – It is father, who had gifted suit properties to his two

sons, while elder son is major, younger son is minor and in gift deed his mother is represented

by younger son, who is minor at time of execution of gift – On conjoint reading of oral evidence

of witnesses, who are attestors of document and son-in-law of donor, will show intention of

donor is clear and bona fide and other criteria of valid gift as defined under Section 149 of

Principles of Mahomedan Law are being duly complied with – Findings of Trial Court that there

is no other property available for partition left behind by deceased father and Plaintiff is not

entitled to relief of partition is liable to be confirmed – Appeal dismissed.

*******

11

CDJ 2017 MHC 154

Sampath Kumar and other vs. State by Periyanaicken palayam P.S.


Court held – As per Section 114 of the Evidence Act, the evidence of an accomplice is

unworthy of credit and unless there is corroboration in general particulars from independent

sources, it cannot be the foundation for conviction. Electronic Evidence – to be accepted should

satisfy the legal requirements of Section 65-B of The Indian Evidence Act – Charge framed

under Section 148 I.P.C. against accused A.1 and A.2. Hence, A.1 and A.2 can be convicted

under Section 149 of I.P.C, even when no charge has been framed under Section 149 of I.P.C. –

Importance of Section 226 of Cr.P.C. emphasized – Judge should not be a silent spectator while

recording evidence. A perusal of cross examination of witness would go to show that it is

nothing but a harassment

2017 (1) TLNJ 187 (Criminal)

Raj vs. Leoni


Section 482 - Petition seeking maintenance filed by wife- ex parte orders passed-

husband filed petition to set aside the same- dismissed- Criminal original petition filed by

husband before high court against the order of dismissal- held– summons were served on the

petitioner/husband, in the maintenance case and he entered his appearance, entered into the

witness box as respondent witness and after examination in chief, he remained ex-parte – After

entering into the box as respondent witness, the contention that he had no knowledge about the

ex-parte order and remained silent without enquiring about the status of the case is not

acceptable – Criminal original petition dismissed.


Adbur Rahman vs. Secretary to Govt. Home Dept. Govt. of T.N. and 4 others.


Article 226 – Petition to stop functioning of a Masjid Shariat Council creating an

impression that it is carrying on judicial function and proclaiming it as an alternative to the

judicial system – exact copies of the summons, alleged orders and proceedings carried inside the

mosque, clearly showed that fourth respondent is a Court – word ‘Court’ is used twice in clause

4 and clause 6 – thus impression which is conveyed to the public at large is of a Court

functioning – persons visiting the mosque may be from different social status and in so far as the

less educated persons may be concerned or women who are vulnerable, certainly the board

would give an impression as if some forum in the nature of a judicial forum is working – It

unequivocally convey that Council has some judicial sanctity, except that on the left side there is

HIGH COURT CITATIONS

CRIMINAL CASES

12

a reference to the persons who are forming part of respondent no.4 Council – unable to agree

with the submission of fourth respondent as if it is an innocuous exercise of mere conciliation

which is taking place – From affidavit of the police authorities, the functioning of the fourth

respondent already stopped – Writ petition allowed.


Arunbabu. K vs. Senthilkumar and 3 ors.


Section 397 r/w 401 – Suit for specific performance against R.I. pending – further

complaint by petitioner against R.1 & R.2 for creating fraudulent sale deed in favour of R.2 with

a view to cause wrongful loss to the petitioner – filed Crl.M.P- dismissed by trial Court –

Revision – Rightly held by trial court that already civil suit pending before Civil Court, petitioner

could only approach the same and he cannot try to convert the same into a criminal case – Also

held that petitioner only a third party, who has entered into an agreement, in regard to the afore

mentioned property – Revision dismissed.


Madhu @ Madhaiyan vs. State by Inspector of Police, Chithodu, Erode District


Section 302 and Criminal Procedure Code, 1973, Section 164- Trial court unfortunately

relied on the statements of witnesses recorded under S. 164 Cr.P.C. and concluded that the

accused is guilty – undoubtedly illegal – trial court overlooked the legal principle that the said

statement under 164 Cr.p.C cannot be a substantive evidence, as the same, being a former

statement, could be used either for corroboration or to contradict the marker of the respective

statement – But trial court used it as substantive evidence – trial court has also observed that the

burden is on the part of the accused to explain as to how the deceased sustained injury – since all

the relevant witnesses have turned hostile, alternative theory pleaded by the accused that the

deceased had fallen down and sustained injury, has also not been ruled out – accused took the

deceased to the hospital with a view to save her, would also be consistent with the innocence

pleaded by him – Appeal allowed.


Purushothaman S/o. Arumugam

vs.

State by Inspector of Police, All women Station, Guindy, Chennai.


Protection of Children from Sexual Offences Act

Section.6 and Indian Penal Code, 1869 S. 506(ii) – offence under – Petition seeking

medical examination of victim girl to determine her age dismissed by trial Court – Revision –

Result of an ossification test cannot be taken to be determinative on the age of the person

examined – It boils down to being a mere statement of the opinion of the Doctor who conducts

the examination – when once the purpose for which a stands filed will not be definitely served by

13

passing favourable order therein – no reason to interfere with the order under challenge –

Revision dismissed.


Thilagavathy.P. vs. Somasundaram.B


Negotiable instrument Act, 1881, Section 138 – Complainant not produced proof of

rental income – Trial Court held that it was unbelievable that a sum of Rs.5,00,000/- was given

by her as loan to accused – Accused acquitted – Appeal – Complainant admitted in her evidence

that Accused had agreed to repay the amount within two months – But in her Lawyer’s notice

she had only mentioned that within one month Accused had agreed to return the same – Even

though Accused in his Reply Notice not mentioned about the fact of stealing of the cheque by the

/ complainant’s husband High Court opined that Complainant when she happens to be a house

wife had not established that she had the requisite wherewithal or means to advance such a heavy

sum of Rs.5,00,000/- to the Accused – Also not shown the said loan amount of in her Income

Tax returns – appeal dismissed.

CDJ 2017 MHC 969

Venkatesan and Others

vs.

State represented by Inspector of Police, Crime Branch, Cuddalore


Held: The Court should begin with the presumption that the approver is unworthy of

credit and if the Court decides to act upon the said evidence of the Approver, it should look for

corroboration, in material particulars. In other words, independently of the accomplice evidence,

there should be some evidence against the accused to connect them with the crime. If the

presumption is otherwise rebutted by evidence, either direct or circumstantial, then, the said

presumption vanishes away and therefore, and in such an event, even in the absence of any

corroboration from any material particulars, the evidence of accomplice, can by itself be the

foundation for conviction.

CDJ 2017 MHC 898

M. Kannan

vs.

State rep by The Inspector of Police, All Women Police Station, Bhavani, Erode District


Held: there was gross dereliction of professional duty by the counsel, "Mr.S". He has not

shown any interest in providing legal assistance to the accused which is his legal obligation

under law, though, admittedly, he was paid his legal fees. Undoubtedly, the accused, though had

engaged a counsel, was deprived of proper legal assistance because of the failure of the counsel

engaged by him to appear before the Court to conduct the case. In these circumstances, now the

14

question is whether on that score, can we hold that there was denial of fair trial to the accused.

The court shall carefully strike a balance between the fair trial to the accused as well as

the victim. In other words, the right of the accused to cross examine the victim and the right of

the victim to privacy should be measured meticulously and without causing any harm to any of

these rights, the court should draw the line. When we do the said exercise, we are convinced that

the right of the accused for fair trail which, in the instant case, has been denied on account of the

gross dereliction of professional duty by the learned counsel needs to be provided once again,

however with sufficient safeguard to the victim's privacy. Thus, we are inclined to remand the

case back to the trial Court to allow the accused to cross examine the witnesses on the same day

and to examine witnesses in defence and with a further direction to the trial Court to dispose of

the case within three months. While the victim / child is under examination, the trial Court shall

scrupulously follow the provisions of the POCSO Act.

CDJ 2017 MHC 1028

Chinnathambi @ Subramani vs. State by IOs, Vellakovil Police Station


Curiously, in this case, the learned Public Prosecutor who conducted trial before the

Court of Sessions had submitted to the court that the appellant was involved in five previous

cases of house-breaking and theft including murder; A2 was involved in 18 previous cases; and

A3 was involved in 27 previous cases. Unfortunately, the trial court has referred to these

previous cases against the accused and has held that from out of these cases, it could be inferred

that the appellant had the modus operandi of making house trespass into the temples and houses

and killing the inmates to commit robbery. This conclusion of the trial court is totally erroneous

and illegal as pendency of other criminal cases against the accused cannot be a ground even to

remotely assume that the appellant/A1 was the perpetrator of the crime in the instant case. The

further observation of the trial court that the investigating officer would not have arrested him in

this case, but for his involvement in this crime, only bears testimony to the imagination of the

Judge and for such imagination, there is no legal sanction. The courts of law cannot allow

themselves to be swayed by these kind of totally irrelevant substances which are brought to the

notice of the court not by way of evidence, but by way of wholly unrelated materials. The courts

of law cannot assume the role of a monarch or dictator so as to impose any punishment on

anyone at their whims and fancies even in the absence of any legal evidence.

*******

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